RICHMOND (CN) – Attorneys for a coalition of animal-protection, consumer-rights, and food-safety organizations on Thursday urged the Fourth Circuit to overturn a North Carolina law they say amounts to a gag order for whistleblowers and chills their freedom of speech.
Under the law at the center of the litigation, organizations and journalists who conduct undercover investigations, and individuals who expose improper or criminal conduct by North Carolina employers, can be held liable for substantial damages if they make the alleged evidence they collect available to the public.
The Republican-controlled state legislature overrode a veto of the bill by former GOP Governor Pat McCrory in June 2015, and the law took effect on Jan. 1, 2016.
Days later, People for the Ethical Treatment of Animals and seven other organizations sued the state attorney general and the University of North Carolina-Chapel Hill, claiming the law’s purpose is to punish those “who set out to investigate employers and property owners’ conduct because they believe there is value in exposing employers and property owners’ unethical or illegal behavior to the disinfecting sunlight of public scrutiny.”
On Thursday, PETA’s lawyer, Davis Muraskin, began his argument by say the law was “designed to stop private special interest organizations from engaging in exposés” because it specifically targets people who take a job solely for the purpose of conducting an investigation.
But U.S. Circuit Judge Dennis Shedd, a George W. Bush appointee, quickly cut Muraskin off, suggesting the plaintiffs objected to the law because “it stopped you from hatching a plan to invade someone’s privacy.”
Later, Shedd questioned whether any of the plaintiffs had actually been injured by the law.
The question, he said, is whether the injury the plaintiffs claim has occurred is “more than speculative.”
The plaintiffs contend that they have people currently working at the defendant university who want to “expose” the college’s use of live animals in scientific experiments.
“We have people ready to go in there, ready to take pictures,” Muraskin said.
The law, however, is making people fear they will be harshly penalized for the doing the right thing, he said.
“The reason this statute was passed was to stop private special interest groups from engaging in exposés,” Muraskin said. “We fall into that class that needs to be protected.”
When it was her turn to speak, Sripriya Narasimhan, counsel for the North Carolina Department of Justice, said the plaintiffs simply have no case.
“There are too many independent contingencies that must occur for the act to incur the penalty,” she said.
In the state’s eyes, she said, a group like PETA must have someone willing to collect and publish the information, as well as a party willing to seek damages when it’s published.
But Shedd pushed on her assertion, asking if the state was ready to “rise and fall” on their standing argument, suggesting if PETA had people willing, then there were probably private entities ready to use the statute to claim penalties.
“This statute was developed by a private right of action for owners and operators of any premises that would be infiltrated,” the judge said.
He then questioned whether the university had a hand in crafting the legislation.
“The General Assembly didn’t just make this up, did they?” Shedd asked.
At least three states — Iowa, Idaho and Missouri — have adopted laws similar to the one being challenged in North Carolina.
Idaho’s law was struck down by a federal court on constitutional grounds in 2015. Iowa’s law is currently facing legal challenge. Missouri’s law, passed last year, is similar to Iowa’s, but includes an exception for anyone sharing pictures or video of animal abuse with law enforcement. That provision appears to have shielded the law from a legal challenge.
Legislatures in 14 other states have taken up similar bills, but have so far failed to pass them.